A sale deed executed by a guardian without consideration is void ab initio and Article 44 of the Limitation Act does not apply to such a transaction.

R. K. DAS, J.

( 1 ) THIS is a plaintiff's second appeal directed against an order dated 9-3-1959 of sri S. K. Mahapatra, District Judge, Balasore, in M. A. No. 77 of 1957, setting aside an order dated 3-8-1957 of Sri N. Sarangi, Addl. Munsif, Balasore, in O. S. No. 84/257 of 1957/54.

( 2 ) THE plaintiff brought a suit for setting aside a sale deed dated 11-4-1946 executed by his father in favour of the father of defendants 1 to 1 (kha) and husband of 1 (ga) as well for recovery of possession together with mesne profits. The case of the plaintiff's is that the sale deed was without consideration and legal necessity and the same was executed at a time when he was a minor and as such it is not binding and is inoperative against him. The plaintiffs further claimed that he was in possession of the suit property in spite of the sale deed till 23-2-1951 when he was dispossessed. Defendants 1 to 1 (ga) are the only contesting defendants. There is no relief sought against defendants 2 to 8, but they have been added as parties as the plaintiff wanted the case to be heard in their presence. The said defendants were also ex parte from the beginning.

( 3 ) THE case of the contesting defendants was that the father of the plaintiff in order to purchase some lands elsewhere for the family convenience sold the Ga schedule land (which is the disputed land) for a sum of Rs. 80/- which was paid in full and that they are in possession of the suit land since the date of its purchase. They further pleaded that the suit was barred by limitation as the plaintiff did not file the suit within three years after he attained majority and the suit was filed on 24-11-1954.

( 4 ) BOTH the Courts below found that the sale deed was without legal necessity and consideration. With regard to the question of limitation, however, there was variance of opinion between the trial court and the lower appellate court. The trial court held that Article 44 of the Indian Limitation Act, which prescribes the period of limitation of three years for a ward to set aside a sale deed executed by his guardian, had no application to the present case but Article 142 applies to the facts of the case. Since the suit was instituted within 12 years from the date of the sale deed and in any case from the date of dispossession) (23-2-51) he held that the suit was within time, and decreed the plaintiff's suit and awarded damages of rs. 25-8-0. The lower appellate Court, however, held, that since the pro vision of article 44 applies to the present case, the suit is barred by limitation and dismissed the appeal.

( 5 ) IN this second appeal in view of the concurrent finding of fact that the sale deed was without legal necessity and consideration, the only question for consideration is whether the suit is tarred by limitation. Article 44 provides limitation for three years for a ward who attains majority to set aside a transfer of property by his guardian--the period to run from the date of his attaining majority. Article 44 contemplates cases in which a transfer has been made by a guardian. If this article is applicable to the present case, then clearly the suit is barred by limitation as it was filed long beyond three years from the date of attainment of his majority.

( 6 ) CERTAIN amount of dispute arose whether in view of the non-passing of consideration money, the transaction becomes void ab initio so that it need not be set aside at all under Article 44 and it was open to the party to take recourse to the other, provisions of law of limitation in so far as the relief claimed by him is concerned. It is not disputed that if the transaction as a void one then Article 44 has no application, since it is not necessary to challenge the transaction itself. The question, therefore, is whether a sale without any consideration is void ab initio so as to make the provisions of Article 44 inapplicable to it. The authority on this point cited at the bar is a case reported in Shamchandra v. Gadad